Gibbs v. Duke
| Decision Date | 02 March 1977 |
| Docket Number | No. 7626SC731,7626SC731 |
| Citation | 32 N.C.App. 439,232 S.E.2d 484 |
| Court | North Carolina Court of Appeals |
| Parties | John William GIBBS et al. v. William Osgood DUKE, Sr. |
Perry, Patrick, Farmer & Michaux, P.A. by Roy H. Michaux, Jr., and Richard W. Wilson, Charlotte, for plaintiffs.
William H. Elam, Charlotte, for defendant.
The defendant first contends that the trial court committed reversible error by refusing to admit testimony regarding conversations between a witness and a trustee of the Bertha Frey Foundation, now deceased, and testimony regarding conversations between the defendant and that same trustee. At trial, the defendant attempted to elicit testimony from one of the plaintiffs' witnesses, Peggy Byers, in reference to a telephone call that she supposedly received from one of the Foundation's trustees, John West, concerning the payment by defendant of a sum of money on his financial obligation to the plaintiffs. The defendant also attempted to introduce evidence of discussions and conversations that he himself had had with Mr. West. In both instances, the trial court sustained the plaintiffs' objections and refused to allow the witnesses to answer.
In order for us to answer the defendant's first contention, it is only necessary to consider G.S. 1A--1, Rule 43(c) which provides in part as follows:
'In an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court On request of the examining attorney shall order a record made of the answer the witness would have given.' (Emphasis added.)
In this Court's interpretation of this rule, it has been stated:
"It is elemental that the exclusion of the testimony cannot be held prejudicial on appeal unless the appellant shows what the witness would have testified if permitted to do so.' (Citation omitted.) Further, the record before us does not show any request made pursuant to Rule 43(c) of our Rules of Civil Procedure that a record be made of the answers which the witness would have given. Therefore, no prejudicial error has been made to appear . . ..' Spinella v. Pearce, 12 N.C.App. 121, 122, 182 S.E.2d 620, 621 (1971).
In the case at bar, the record reveals that the defendant failed to include the answers to the questions posed to Mrs. Byers and to the defendant. Moreover, the the answers be included in the record. The the answers be include in the record. The defendant, having failed to include the answers in the record and having failed to make a request that the answers be included, as required by G.S. 1A--1, Rule 43(c), has not made it appear that such exclusion was prejudicial. This assignment of error is therefore overruled.
By defendant's second assignment of error, he contends that the trial court committed reversible error in denying his motion for a directed verdict at the conclusion of plaintiff's evidence. He argues that there was insufficient evidence to justify a verdict for the plaintiffs and that a directed verdict should therefore have been granted. An examination of the record reveals, however, that after the court rejected the defendant's motion for a directed verdict, he then proceeded to offer his own evidence and did not thereafter renew his motion. By offering his own evidence, the defendant waived his Rule 50 motion for a directed verdict made at the close of plaintiffs' evidence and cannot claim error of its denial on appeal. Overman v. Products Co., 30 N.C.App. 516, 227 S.E.2d 159 (1976); see Woodard v. Marshall, 14 N.C.App. 67, 187 S.E.2d 430 (1972); Wright and Miller, Federal Practice and Procedure: Civil § 2534. This assignment of error is therefore without merit.
In his third assignment of error, the defendant argues that the trial court erred in denying the admission of testimony by defendant's witness, C. E. Hulsey, concerning the defendant's character, reputation, and credit record. We have reviewed the...
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Smith v. Price
...that a directed verdict made at the close of the evidence is an absolute prerequisite to a motion for judgment n.o.v. Gibbs v. Duke, 32 N.C.App. 439, 232 S.E.2d 484 disc. rev. denied, 292 N.C. 640, 235 S.E.2d 61 (1977); Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). Rul......
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City of Charlotte v. Hurlahe
...entitled to argue this issue on appeal. Cannon v. Day, 165 N.C.App. 302, 305-06, 598 S.E.2d 207, 210, (citing Gibbs v. Duke, 32 N.C.App. 439, 442, 232 S.E.2d 484, 486 (1977)), disc. review denied, 359 N.C. 67, 604 S.E.2d 309 (2004). This assignment of error is In a related assignment of err......
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Martin v. Pope
...move for a directed verdict at the close of all the evidence, not merely at the close of the plaintiff's case. Gibbs v. Duke , 32 N.C. App. 439, 442, 232 S.E.2d 484, 486 (1977). This is so because, once defendants have presented their own case, the evidence in the trial record has changed. ......
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Cannon v. Day
...of the evidence for appellate review, they were required to renew this motion at the close of all the evidence. Gibbs v. Duke, 32 N.C.App. 439, 442, 232 S.E.2d 484, 486, disc. review denied, 292 N.C. 640, 235 S.E.2d 61 (1977). Defendants did not, however, renew their motion for directed ver......